What about the scenario where there is a good argument that a dedication has occurred subject to a limitation (e.g. a gate) that would otherwise be an unlawful obstruction to a highway?
The legal fiction would presumably be that the limitation somehow reflects the intention of the owner of the route at that time of of the common law dedication. But many such highways will, by automatic statutory process, have become maintainable at public expense. In which case the highway authority will have had vested in it the “two top spits” or such depth as is reasonably required for use as a highway. In short, the highway authority the owner of the surface for as long as the route is a highway. The original successor in title to owner who originally dedicated the route will continue to own the sub-soil not required for highway purposes.
The normal legal presumption or rule is old and well established. The legal maxim quicquid plantatur solo, solo cedit(whatever is affixed to the soil belongs to the soil) applies. So if a man builds a wall on another’s land the wall belongs to the owner of the land. He may demolish it or do anything else that an owner may do. In Royco Homes Ltd. v Eatonwill Construction Ltd. v Three Rivers District Council Third Party [1979] Ch. 276) the Defendant, a development company, installed a sewer under a highway in the early 1960s. Because of a mistake the sewer had never been adopted. The highway andthe sub-soil through which the sewer ran were in public ownership. In 1975 the Claimant, also a development company, completed the development of 32 houses in the nearby area and connected to the sewer. In 1977 the Defendant sealed off the sewer. In proceedings that followed the Defendant claimed it was the owner of the sewer. The Judge held the rule quicquid plantatur solo, solo cedit applied so that the local Council, as owner of the soil, became the owner of sewer.
All this might give rise to further questions in particular cases. For example:
First, where a highway is maintainable at the public expense is a highway authority entitled to rely on its rights as owner to immediately demolish itself or require to be demolished (by court order if appropriate)? The answer seems to be that it could as it is long established that a highway authority has a common law right to remove an obstruction. See Reynolds v Presteign UDC [1896] 1 Q.B. 604.
Second, - and perhaps more controversially – could a highway authority choose to demolish a gate even there were a limitation providing that it was lawful for the gate to stand. If there is a discretion in the owner of the highway as to whether to take advantage of the limitation then the answer might be a tentative “YES.”
None of this deals with the distinct scenario where there was no dedication subject to a limitation and it is necessary to look and see whether there is a specific statutory authorisation for gates to be installed on the route. However, a further interesting scenario might arise whether it is unclear whether or not the route was dedicated subject to the limitation. What does the highway authority do in the interim period because it can be determined whether or not this is true?